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COMPANY, et al.


SEPTEMBER 11, 2001

Record No. 1134-01-3

Present: Judges Benton, Humphreys and Retired
Judge Cole






(Ginger J. Largen; Morefield Kendrick Hess
& Largen, P.C., on brief), for appellant.

(Ramesh Murthy; Lisa Frisina Clement;
PennStuart, on brief), for appellee.


Lonnie James Breeding contends the Workers’
Compensation Commission erred in finding that (1) Breeding was
not totally disabled due to a psychiatric condition causally
related to his compensable June 28, 1998 injury by accident; and
(2) Breeding unjustifiably refused selective employment offered
by Clinchfield Coal Company. Upon reviewing the record and the
briefs of the parties, we conclude that this appeal is without
merit. Accordingly, we summarily affirm the commission’s
decision. See Rule 5A:27.


"Medical evidence is not necessarily
conclusive, but is subject to the commission’s consideration and
weighing." Hungerford Mechanical Corp. v. Hobson, 11
Va. App. 675, 677, 401 S.E.2d 213, 215 (1991). Thus,
"[q]uestions raised by conflicting medical opinions must be
decided by the commission." Penley v. Island Creek Coal
, 8 Va. App. 310, 318, 381 S.E.2d 231, 236 (1989). Unless
we can say as a matter of law that Breeding’s evidence sustained
his burden of proving that he was totally disabled as a result of
a psychiatric condition causally related to his compensable
injury by accident, the commission’s findings are binding and
conclusive upon us. See Tomko v. Michael’s Plastering
, 210 Va. 697, 699, 173 S.E.2d 833, 835 (1970).

In ruling that Breeding’s evidence failed to
sustain his burden of proof, the commission accepted the opinions
of Drs. Paul R. Kelley and Richard G. Salamone and rejected
the contrary opinions of Drs. Neil Dubner and B. Wayne Lanthorn,
a licensed clinical psychologist. The commission found as

The record reflects that Dr.
[Neal] Jewell, [Breeding’s treating orthopedist,] evaluated [Breeding] on a consistent basis
throughout the relevant period[, i.e.,
from July 1999 forward]. Neither before nor after
July 1999 did Dr. Jewell note any signs of any
disabling psychiatric condition, or, in fact, any
psychiatric signs or symptoms of any kind. We
note that Dr. Jewell never requested a referral
for psychiatric treatment at any stage. In July
1999, contemporaneous with Dr. Dubner’s first
evaluation, [Breeding] independently sought an
evaluation from Dr. [Ken] Smith. As part of his
evaluation Dr. Smith performed a mental status
examination from which he concluded that
[Breeding] did not suffer from any psychiatric
condition, whether disabling or not.

A careful reading of Dr.
Dubner’s treatment records reveal that his
diagnosis and opinion is based primarily on
[Breeding’s] reports of incapacitating pain of
such severity that [he] must spend a significant
portion of the time lying down. Dr. Dubner noted
by history that [Breeding] "frequently will
lie down to give himself relief" and "a
number of months ago he spent probably half his
time lying around just trying to gain some
relief." We contrast this history with the
contemporaneous medical reports from Dr. Jewell,
Dr. Smith, Dr. [Earl K.] Wilson, Dr. [Charles] Bolick, and that of the evaluator for the
Functional Capacity Evaluation
[("FCE")]. None of the physicians noted
complaints to this degree. Dr. Jewell as well as
the therapist who performed the [FCE] noted signs
of symptom magnification. Likewise Dr. Kelley and
Dr. Salamone noted test results consistent
with symptom magnification. Dr. Salamone’s
opinion that it would require a "fairly
severe depression" to preclude engagement in
gainful employment, was not specifically

Further, we note that Dr.
Jewell evaluated [Breeding] in January and March
2000. During neither visit did he document any
complaints of psychiatric impairment nor signs
and symptoms thereof independent of any
subjective complaints. The emergency room
physician did not record by history any
complaints regarding psychiatric symptoms or
disability flowing therefrom [on February 22,

The commission, as fact finder, was entitled to
weigh the medical evidence. In doing so, the commission accepted
the opinions of Drs. Kelley and Salamone, while rejecting the
contrary opinions of Drs. Dubner and Lanthorn. Thus, viewed in
the light most favorable to the prevailing party below, see
R.G. Moore Bldg. Corp. v. Mullins, 10 Va. App. 211, 212,
390 S.E.2d 788, 788 (1990), the evidence demonstrates an absence
of any significant psychiatric symptoms or complaints by Breeding
to Drs. Jewell, Smith, Wilson, and the FCE evaluator during the
relevant time period. The evidence also supports the reports of
Breeding’s symptom magnification. Moreover, in light of the
opinions of Drs. Kelley and Salamone, the evidence does not
establish as a matter of law that Breeding’s evidence proved he
was totally disabled due to a psychiatric condition causally
related to his compensable accident as of February 25, 2000.


"To support a finding of refusal of
selective employment ‘the record must disclose (1) a bona fide
job offer suitable to the employee’s capacity; (2) [a job offer
that was] procured for the employee by the employer; and (3) an
unjustified refusal by the employee to accept the job.’" James
v. Capitol Steel Constr. Co.
, 8 Va. App. 512, 515, 382 S.E.2d
487, 489 (1989) (quoting Ellerson v. W.O. Grubb Steel Erection
, 1 Va. App. 97, 98, 335 S.E.2d 379, 380 (1985)).
"When the employer establishes that selective employment was
offered to an employee that was within the employee’s capacity to
work, the employee bears the burden of establishing justification
for refusing the offered employment." Food Lion, Inc. v.
, 16 Va. App. 616, 619, 431 S.E.2d 342, 344 (1993).

Breeding failed to prove that as of February
25, 2000, he was totally disabled due to a psychiatric condition
causally related to his compensable accident. Furthermore, Dr.
Jewell’s March 6, 2000 opinion indicated that Breeding’s physical
condition had not changed since January 17, 2000 and that
Breeding could perform the selective employment previously
approved. Therefore, we cannot conclude as a matter of law that
Breeding proved he was justified in refusing selective employment
as of that date.

For these reasons, we affirm the commission’s




[1] Retired Judge Marvin F. Cole took
part in the consideration of this case by designation pursuant to
Code Sect. 17.1-400(D).

[2] Pursuant to Code
Sect. 17.1-413, this opinion is not designated for